Alphonso Wetmore, plaintiff in error v. The United States, 10 Pet. 647

Mr Justice Wayne delivered the opinion of the Court. This is a writ of error from the district court of the United States for the district of Missouri, to have a judgment reversed, which was rendered for the United States, against the plaintiff in error. R was admitted on the trial, that the defendant had served as paymaster of the army, duly appointed as such, from the 24th April 1816, to the 31st May 1831.

That the amount-claimed from him by the United States was the.difference between the pay and emoluments allowed by the. accounting officers of the treasury to the defendant, and the amount claimed and retained by him during the period of his service. The defendant had retained the pay and emoluments allowed by law to officers of the general staff of the army, of the rank of major.

Upon the trial, the defendant offered as evidence two army registers; one published by the adjutant and inspector-general of the army.in August 1816, the other published in 1831, which'had been delivered to himself and other officers of the army. In both, the officers of the pay departure it are-arranged as belonging to or appertaining to the general staff of the army.

He also offered as evidence a general order, issued by the major-general commanding in chief, dated at head quarters of. the army, adjutant-general’s office, Washington, the 11th June 1832; which directs, that the .general staff is to include the officers of the pay department. .These registers, and the general order, the court refused to allow to be-read as evidence to the jury; and no further evidence being offered by-the defendant, he moved the court to instruct the jury.: 1st.

That the'defendant is entitled to the pay and emoluments allowed by-law to the officers of the general staff of the army, of the rank of major; that is to say, the pay and emoluments allowed- to majors of light dragoons by the act of congress of the 12th April -1808. 2d. That if the jury find, from the evidence,, that the defendant was, from the 24th April 1816 to thé time of the statement of the account read in: evidence, an officer in.the general staff of the army; he is entitled, for the time hé has served, to the pay and emoluments allowed by law to the officers of the general staff of the rank of major.

" The court refused to give the instructions; and instructed the jury.' that the defendant, in virtue of his office, was entitled only to receive the pay and emoluments of a major of infantry. These registers, however, and the general order of the major-general, with the general regulations of the army printed and published by the war department in the year 1825, have, since the writ of error was sued out, been admitted, by the consent of the attorney-, general, to be a part of the original record, as if they had been referred to and stated iff the bill of exceptions, aiid had been proved on-the-trial.

And it is further admitted by the attorney-general and the defendant’s counsel, that the custom and usage off the army have always been, to class the officers of the pay department .among the officers of the general staff of the a.rmy; and that since the act of the 24th April 1816, for the organization of the general staff, &c., it has been the inyariable usage and practice of the treasury department, and of the proper accounting officers, to allow the pay and emoluments of a major of cavalry to the assistant adjutants-general, to the assistant inspectors-general, to the deputy quarlermastersgeneral, and to the topographical engineers; and since the act of the 2d March 1821, to majors on ordnance duty, and to the quartermasters.

It is but proper, however, to remark, that the court did right in rejecting the registers and general order, when the defendant offered them as evidence on the trial.

The registers are compilations issued and published to the army by the direction of the secretary at war, in the exercise of his official authority; and when authenticated by him, would be evidence of the facts, strictly so, they may contain; such as the names of officers, dafe of commissions, promotions, resignations, and regimental rank, brevet and oth'er rank, or the department of the army to which officers belong: but from none of these can an inference be drawn by a jury to establish the pay and emoluments of officers; as they are provided for by law, and must be determined by the court when they are doubtful, and the subject of dispute in a suit between an officer and the United States.

Nor can such registers be evidence of the correctness of any classification of the officers of departments into a general staff of the army: for though they are probably correct, being prepared by persons whose professional duty it is to be well informed upon the subject, and who, from their familiarity with military science and the general arrangement of armies, are supposed to be expert interpreters of the acts of congress for the organization of our army; still, what officers are of the staff, or general staff, depends upon acts of congress, which are to be expounded by the courts, when an officer claims a judicial determination of his rights as to pay and emoluments, from his having been arranged as belonging to the staff.

However, we are not now called on to say what officers make up the general staff, or what departments of the army may be assigned to it, ór are .comprehended in it by the acts of congress; noris.it necessary for the decision of this case, to deny that paymasters may not be arranged as of the staff, under the act of the 2d March 1821.

Copsidering the staff as a central point of military operations, whence should proceed all general orders for the army, the orders of detail, of instruction, of movement, all general measures for subsisting, paying and clothing the army; and as the administrative organ of all supplies for the military service and land defence of the country: it seems to us, that paymasters, from their duties and responsibilities, should be classed with the general staff; and we presume it has been done under the act of the 2d March 1821, which, without being express upon the point, has rendered indeterminate the previous acts of congress fixing with certainty the officers composing the staff.

Conceding, then, for the purposes of this argument, that paymasters are of the staff; does it strengthen the claim of the defendant to the pay and emoluments of a major of cavalry 1 The position taken in favour of cavalry pay is, that paymasters, being of the general staff, are entitled, by the third

section of the act of the 24th April 1816, to the pay and emoluments allowed by law to the officers of the general staff of the rank of major. The third

section declares, “that regimental and battalion paymasters shall receive the pay and emoluments of majors,” without the additional words of cavalry or infantry. The ninth

section of the same act secures to the several officers of the staff the privileges, pay and emoluments of the act of the 3d March 1813. By the third

section of that act, the assistant adjutajits-general, assistant inspectors-general, deputy quartermasters-general, and assistant topographical engineers, are-declared to have the brevet rank and the pay and emoluments of a major of cavalry. These are the officers of the staff, upon hn equality with whom, in regard to pay and emoluments, it is contended that paymasters are placed by the act of the 24th April 1816. The question depends entirely upon the construction of tfie acts of congress.

Having examined them, we are of opinion, that congress meant,by the words “the pay and emoluments of major,” those of a major of infantry. It was urged, however, in the argument, against this conclusion, that congress, in referring to the pay of major to fix that of paymasters, when there are different amounts of pay. allowed to majors, according to the nature of the service, had reference to those whose duties are most analogous to that of paymasters, and who belong to the same branch of service.

That paymasters belong to the staff of the army; and all officers of the staff who receive the pay of major, are allowed cavalry pay. That there was a strong analogy between deputy quartermasters and paymasters, both being of the staff and disbursing officers, which raised a fair and strong presumption that congress intended paymasters should receive the same pay and emoluments as deputy quartermasters, or majors of the staff.

Upon these suggestions of analogy, we remark; it will not be pretended, before the act of 1816 was passed, that any relation existed between paymasters and the officers of the staff receiving the pay of a major of cavalry, to enable the former to have their pay graduated by that standard.

In all the acts of congress, providing for the appointment of paymasters, whether they were regimental or district paymasters, or whether they were, to be selected from the line of the army, or from citizens not of the army; the. pay was fixed in reference to the duties and responsibilities of the appointment, without reference to any connexion'of paymasters with the staff, and without regard to any analogy of duty between paymasters and any officer of the staff. In truth, the only analogy existing between paymasters and any officer of the staff, is that to deputy quartermasters ; both being disbursing officers.

The want of general analogy, then-, shows that congress could not have been influenced in fixing the pay of paymasters by any such consideration ; and the particular analogy between them and a single class of officers, in a single point, is insufficient to sustain such a 'presumption. Besides, the act relied upon to.establish the equality contended for, makes a difference between paymasters and the officers of thp staff, in regard to rank; enough of itself to account for the larger pay and emoluments allowed to the latter.

They have the brevet rank of majors of cavalry, which is not given to paymasters; and to the latter the law allows no rank. The language of the act of 1813, referred to in the ninth

section of the act of 1816, is, that the assistant adjutants-general, assistant inspectors-general, deputy quartermasters-general, and topographical engineers, shall have the “ brevet rank,” and the pay and emoluments of a. major of cavalry. The

section of the act of 1816, fixing the pay of paymasters, omits the words “ brevet rank.” As well might it be contended that they should have it, as that the words of cavalry should be added to the word major. One would do no more violence to rules for the construction of statutes than the other; but both would-be in harmony with the principle applied in this instance, to give the paymasters cavalry pay.

Rank of itself, in every sen ice, is a good ground for a distinction in pay: and though it has not been followed, or has rather, been abandoned in ours, in favour of the brevet rank of officers in the line and staff, it should be presumed to apply to persons having rank, and those who have none. Cavalry pay, .then, having been claimed on the ground of equal grade in the staff, the fact being otherwise; nothing is left to sustain the claim.

But it. will be asked, by what considerations is it determined that the pay and emoluments of paymasters are those of a major of infantry 1 We answer: first, that alt the previous legislation of congress, from the earliest period of the government, and its practice, give a rule which should be decisive of this question.

The acts, from 1792 to the 2d March 1821, (the last upon the subject) show that congress, in determining at'different times, the pay of paymasters, have always fixed it with reference to the pay of an officer in the line, with such additional compensation as was deemed to be a remuneration for increased duty and responsibility; whether the selection was to be made from subalterns of the army, or from citizens ; and when the latter, where there was a deviation, it has been by giving a fixed monthly compensation. This uniformity of practice certainly outweighs any presumption that can be raised from the ninth

section of the act of 1816, that there was to be a sudden change of it in favour of staff pay: especially So, when the ninth

section can only be received as providing for a certain officer, officially designated in the act of 1813, and entirely independent of the third

section of the act of 1816, which had already fixed the pay of paymasters. It would be very difficult to connect the two sections, the third and ninth, in any way, to bear upon each other; and the mistake in doing it has arisen from' going out of the statute, and en-grafting upon the intention of. congress the, exterior consideration that paymasters had been arranged under the general staff.

Again, when the acts speak of regimental arid battalion paymasters, these laws must necessarily refer to the existing composition of the army, whether it be made up of all, or one, of the different arms of defence; and cannot, without great violence, be supposed to mean one of them not comprehended in the existing military establishments of the country.

So also, when the law speaks of a major, the term is most naturally considered .as having been used in reference to such officers of that rank, and of such regiments actually being of the army, or to.the army as it exists; and when it is used without regimental designation, implies a major of infantry; this arm of defence having been made the main body of modern armies.

We think military men must so understand it; because, in this, as in all other cases where distinct parts form the minor portion, the larger or main body is understood without particular designation, and the minor requires it, to ascertain with certainty, what

part is referred to as spoken of. So that where the ninth

section of the act of the 2d of March 1821, declares that there shall be fourteen paymasters, with the pay and emoluments of regimental paymasters; and when to ascertain what the pay and emoluments are, we have to resort to the third

section of the act of 1816, and there find it to be those of a major: the law must mean a regimental and not a staff major, a major of infantry. Certainly it should not be tortured to mean a major of one of the arms of defence or kinds of regiment, of which there is none in the army. When the act of 1816 was passed, cavalry did not form a part of the army; consequently no such rank as major of cavalry existed, by which the pay of paymasters could have been graduated. But it was urged in argument, that there was such a thing as the pay of a major of cavalry, subsisting in legal contemplation.

There was ; but for no other purpose than as giving the standard of pay to certain staff officers. It is not probable that congress, when fixing the pay of paymasters, referred to what only existed in contemplation of. law; in preference to what existed in fact, to guide its determination. But another, and the only remaining consideration to which we shall allude, as decisive of the

interpretation here given to the third

section of the act of 1816, is the contemporaneous expajition and practice under it, by the accounting officers of the treasury, and acted upon by congress, when five years afterwards it re-ofganized the pay department of the army. The-ninth

section of the act of the 2d of March 1821, to reduce and fix the military peace establishment, declares that there shall be one paymaster-general, with the present compensation, and fourteen paymasters with the pay, &c. of. regimental paymasters.

This act, in reference to the paymaster-general, is positive in-continuing the existing compensation; and the term regimental, applied to the paymaster, is to be taken in the sense in which it is used in the act . fixing, the peace establishment, or to the kinds of regiment of which the army was to be composed; and as continuing the paymasteVs upon the footing they actually were, and had been for five years, in regard to pay and emoluments.

Congress knew what these were, and cannot be supposed to have intended to re-enact the law of 1816, with the construction of it here contended for; in opposition to the practice of the treasury department under it. • Judgment affirmed.